Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 1065

IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Sundaran S/o Raghavan – Appellant
Versus
State of Kerala – Respondent
Crl. M.C. No. 3922 of 2023
Decided On : 24-05-2023

Advocates Appeared:
For the Appellant : Rajesh Chakyat
For the Respondent: Vipin Narayan

The court affirmed that missing documents may be submitted at later stages in trials to avoid undue delays, emphasizing rights of the accused are safeguarded by allowing challenges to evidentiary validity at a subsequent stage.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)

(C) - Indian Evidence Act, 1872 - Section 65(c) - Production of photocopy of document - Application allowed to submit photocopy despite original being lost - Genuineness can be decided later - Court recognized necessity of expediting trials and allowing document production in stages when mandatory procedures could not be strictly adhered to. (Paras 1, 5, 9, 14)

(B) Right to Search - Requirements under Section 50 - The accused must be informed of the right to have a judicial magistrate present during a search - Admissibility of evidence regarding this compliance can be assessed during the trial. (Paras 6, 10, 14)

Facts of the case:
The appellant is accused of handling narcotics as caretaker of a property where contraband was found. A document concerning this right was missing during initial proceedings and was sought to be submitted for evidence.

Findings of Court:
The order allowing the submission of the photocopy is upheld as it aligns with practices for fair trial and not prejudicing the accused's rights.

Issues: The primary issues pertained to the right to be informed and the admissibility of evidence regarding the process followed in the investigation.

Ratio Decidendi: The court emphasized the importance of allowing the prosecution to produce subsequent evidence to ensure trials progress without undue delay, ensuring rights of the accused are also respected.

Result: The impugned order does not warrant interference.

Table of Content
1. allegations of drug possession by petitioner. (Para 1 , 2)
2. objection to admissibility of document in evidence. (Para 3 , 4)
3. arguments on document's admissibility and fabrication. (Para 5 , 6 , 7)
4. court's interpretation of document admissibility norms. (Para 8 , 10 , 11 , 12 , 13)
5. principles from case law regarding document production. (Para 9)
6. conclusion asserting no interference with lower court's order. (Para 14)

ORDER :

1. The petitioner herein is the 2nd accused in S.C. No.517/2022 on the file of the First Additional Sessions Court, Thrissur. In the aforesaid case, he is accused of having committed the offences punishable under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “the Act”). The challenge in this petition is mounted against the order dated 05.04.2023 in Crl. M.P. No. 629/2023, by which the application filed by the learned Public Prosecutor to produce and mark the photocopy of a document was allowed.

2. Before delving into the merit of the order impugned, short facts which led to the passing of the order are required to be stated:

The prosecution allegation is that the petitioner was acting as the caretaker of the house owned by a certain Vincent. The allegation is that the 1st accused, for the purpose of sale, procured 27.530 kg of Ganja from Tamil Nadu, and the same was entrusted to the petitioner. The petitioner is alleged to have kept the contraband on the Veranda of the house. Based on source information, a search was conducted, and the contraband articles were allegedly seized.

3. Trial commenced, and during the fag end of examination of the detecting officer, who was being examined as PW1, an application was filed by the prosecution to produce a photocopy of the document prepared by the investigating officer at the time of conducting the search of the house. The said document disclosed that the detecting officer had informed the accused in writing that he had the right to insist on the presence of a Judicial Magistrate or a Gazetted Officer to witness the search. The petitioner answered in the affirmative, and his signature was collected. However, the said document was not produced along with the final report. The application was filed purportedly under Section 65(c) of the Indian EVIDENCE ACT , stating that the original of the record is lost and requesting that the prosecution be permitted to place on evidence a true photocopy of the same.

4. The petitioner filed a detailed objection objecting to the course adopted by the prosecution. He contended that in none of the prosecution records or in the statement of the witnesses reference is made to any such document prepared under Section 50 of the Act. It was also contended that the document was introduced to fill up the lacunae in the prosecution case.

5. The Sessions Judge rejected the objection raised by the petitioner and allowed the prosecution to mark the document by holding that the genuineness of the document can be looked into at a subsequent stage.

6. Sri. Rajesh Chakyat, the learned counsel appearing for the petitioner, submitted that no reasons whatsoever have been stated by the learned Additional Sessions Judge while proceeding to allow the application. All that is stated is that the genuineness of the document can be looked into at a subsequent stage, and only the admissibility of the document is required to be decided at the stage when the document was tendered in evidence. According to the learned counsel, the contention of the petitioner that the document is fabricated and brought into existence to set up false evidence as against the petitioner was not considered by the learned Sessions Judge.

7. The learned Public Prosecutor would rely on the law laid down by the Apex Court in Central Bureau of Investigation v. R.S. Pai and another , 2002 (5) SCC 82 and it was argued that there is no prohibition in producing the documents at a subsequent stage. According to the learned c